In general, copyright is a form of legal protection given to content creators through the assignment of specific rights to works that qualify for protection.
The main goals of copyright are to encourage the development of culture, science and innovation, while providing a financial benefit to copyright holders for their works, and to facilitate access to knowledge and entertainment for the public. Copyright provides a framework for relationships between the different players in the content industries, as well as for relationships between rightsholders and the consumers of content. Copyright is a form of Intellectual Property, along with trademarks and patents in all countries, and other creations (such as trade secrets, sui generis database rights, rights of publicity and the like) that may vary from country to country.
When Copyright Protection Begins
One of the basic principles of the Berne Convention is that of “automatic protection”, which means that copyright protection exists automatically from the time a qualifying work is fixed in a tangible medium (such as paper, film or a silicon chip). A “qualifying work” is a literary work, a musical composition, a film, a software program, a painting or any of many other expressions of creative ideas – but it is only the expression, and not the idea, that is protected by copyright law. Neither publication, registration, nor other action is required to secure a copyright, although in some countries use of a copyright notice is recommended, and in a few countries (including the United States) registration of domestic works is required in order to sue for infringement.
What Is Protected By Copyright?
The Berne Convention provides that, at a minimum, copyright protection in all signatory countries should extend to “literary and artistic works,” including “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.”
The detailed list of categories of works that are protected by copyright – and the specific definition and scope of each of them – may slightly vary from country to country, but it generally includes scientific articles, essays, novels, short stories, poems, plays and other literary works; drawings, paintings, photographs, sculptures and other two- and three-dimensional pieces of art; films and other audiovisual works; musical compositions; software and others.
Copyright is a creation of law in each country, and therefore there is no such thing as an international copyright law. Nevertheless, nearly 180 countries have ratified a treaty – the Berne Convention, administered by the World Intellectual Property Organization (WIPO) – that sets a minimum set of standards for the protection of the rights of the creators of copyrighted works around the world. In addition, there have been efforts to harmonize copyright law in Europe and other regions. The differences in national copyright laws, however, can represent a challenge for global organizations with employees working in different countries and sharing content across boundaries.
Different Types of Rights
Most national copyright laws recognize two different types of rights within copyright: Moral rights and economic rights.
Moral rights refer to the idea that a copyrighted work is an expression of the personality and humanity of its author or creator. They include:
- The right to be identified as the author of a work,
- The right of integrity (that is, the right to forbid alteration, mutilation or distortion of the work), and
- The right of first divulgation (that is, making public) of the work.
Moral rights cannot always be transferred by the creator to a third party, and some of them do not expire in certain countries.
Countries in the Anglo-American tradition, including the United Kingdom, the United States, Canada, Australia and New Zealand, tend to minimize the existence of moral rights in favor of an emphasis on economic rights in copyright.
Economic or exploitation rights recognize the right of the holder to use, to authorize use of, or to prohibit the use of, a work, and to set the conditions for its use. Different specific uses (or “acts of exploitation”) of a work can be treated separately, meaning that the rightsholder can deal with each right (including using, transferring, licensing or selling the right) on an individual type-of-use basis. Economic rights typically include:
- The right of reproduction (for instance, making copies by digital or analog means),
- The right of distribution by way of tangible copies (for example, selling, renting or lending of copies),
- The right of communication to the public (including public performance, public display and dissemination over digital networks like the Internet), and
- The right of transformation (including the adaptation or translation of a text work).
The duration of copyright may vary from country to country according to the type of work (and the particular right in question). Although the Berne Convention sets a minimum duration of a copyright in a literary work equal to the life of the author plus 50 years, in most cases and countries today, the general rule is that copyright in literary, dramatic, musical or artistic works lasts for the life of the author and then until 31 December of the year 70 years after his or her death (usually referred to as “life plus 70”).
In some countries, specific rules may apply that alter or add to the general rule of life plus 70 years (for example, granting extensions for the period of World War II). In addition, some countries had different copyright terms that were in effect before adoption of the general rule. For example, the United States did not adopt a “life plus” copyright duration until 1978. These differences in national laws imply the fact that in some cases a specific work can still be in copyright in some countries but out of copyright (that is, in the public domain) in others.
Several international treaties encourage reasonably coherent protection of copyright from country to country. They set minimum standards of protection which each signatory country then implements within the bounds of its own copyright law.
The oldest and most important treaty is the Berne Convention, first signed in 1886, revised many times in the years since, and today ratified by more than 160 countries. Berne establishes minimum standards of protection (types of works protected, duration of protection, scope of exceptions and limitations) as well as the principles of “national treatment” (works originating in one signatory country are given the same protection in the other signatory countries as each grants to works of its own nationals) and “automatic protection” (copyright inheres automatically in a qualifying work upon its fixation in a tangible medium and without any required prior formality).
First signed in 1996, the WIPO Copyright Treaty makes clear that computer programs and databases are protected by copyright, and recognizes that the transmission of works over the Internet and similar networks is an exclusive right within the scope of copyright, originally held by the creator. It also categorizes as copyright infringements both (i) the circumvention of technological protection measures attached to works and (ii) the removal from a work of embedded rights management information.
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) also entered into force in 1996, is administered by the World Trade Organization, and includes a number of provisions related to the enforcement of IP rights. The TRIPS agreement says that national laws have to make the effective enforcement of IP rights possible, and describes in detail how enforcement should be addressed.
Copyright Regulations in Europe
Efforts in the European Union to harmonize copyright law have resulted in a number of regulations, including the 2001 Directive on Copyright in the Information Society.
The Directive on the harmonisation of certain aspects of copyright and related rights in the information society (2001/29/EC) had two main objectives: reflect technological developments in copyright law in Europe and transpose into European law the provisions contained in the two WIPO treaties of 1996.
The Directive harmonized across European Union Member States the rights of reproduction, distribution and communication to the public, as well as the legal protection of technical protection measures and rights management systems. It also included an exhaustive list of limitations and exceptions to copyright, most of which are optional for the Member States to implement in their national laws. A later study by the Institute for Information Law (Univ. of Amsterdam) concluded that those options provided to the Member States had substantially interfered with harmonization.
Another important piece of European legislation is the 2004 Directive on Enforcement of Intellectual Property Rights, which was followed by the creation in 2009, of the European Observatory on Counterfeiting and Piracy.
Exceptions and limitations to copyright are special cases defined by law where the general principle that the prior authorization of the rightsholder is necessary to make use of a work does not apply. That is, in the public interest of maintaining a balance between the interests of rightsholders and those of content users, copyright-protected works may in some cases be used without the authorization of the rightsholder.
Generally, exceptions and limitations to copyright are subject to a three-step test initially set out in the Berne Convention and repeated in a number of other international agreements. Briefly stated, the Berne Convention provides that an exception or limitation to copyright is permissible only if (1) it covers only special cases, (2) it does not conflict with the normal exploitation of the work, and (3) it does not unreasonably prejudice the legitimate interests of the author.
Within that standard, exceptions and limitations vary substantially from country to country in number and scope, who is entitled to benefit from them, and whether or not they include an obligation to compensate the rightsholders whose rights are so limited.
Usually, the exceptions and limitations established in the law of a country do not cover acts of exploitation made in private companies and/or for business purposes.
Fair Dealing and Fair Use
While most countries specifically identify the exceptions and limitations to copyright that they have created, the United Kingdom and the United States have each created broad exceptions in their respective statutes.
In the United Kingdom and many of its former colonies (including Ireland, Canada, Hong Kong, Australia and New Zealand), the principle of “fair dealing” covers a substantial scope of uses where prior permission is not needed. The criteria for what is considered to be fair dealing are listed in the law in each of those countries, without mentioning every specific possible use. In the United States (and, more recently, Israel, Poland and possibly a few other countries), the concept of “fair use” covers certain uses that, on balance, are deemed not to impinge on the rights of the copyright holder sufficiently, and/or are deemed to serve a sufficiently important public-policy goal that they are permitted without the authorization of the copyright holder. The factors assessed by a court to determine fair use are set forth in each country’s statute and case law.
Fair Use in the United States
The concept of fair use can be confusing and difficult to apply to particular uses of copyright protected material. Understanding the concept of fair use and when it applies may help ensure your compliance with copyright law.
Fair use is a uniquely U.S. concept, created by judges and enshrined in the law. Fair use recognizes that certain types of use of other people’s copyright protected works do not require the copyright holder’s authorization. In these instances, it is presumed the use is minimal enough that it does not interfere with the copyright holder’s exclusive rights to reproduce and otherwise reuse the work.
Fair use is primarily designed to allow the use of the copyright protected work for commentary, parody, news reporting, research and education. However, fair use is not an exception to copyright compliance so much as it is a “legal defense.” That is, if you use a copyright protected work and the copyright owner claims copyright infringement, you may be able to assert a defense of fair use, which you would then have to prove.
Section 107 of the United States Copyright Act lists four factors to help judges determine, and therefore to help you predict, when content usage may be considered “fair use.”
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. If a particular usage is intended to help you or your organization to derive financial or other business-related benefits from the copyright material, then that is probably not fair use.
- The nature of the copyrighted work. Use of a purely factual work is more likely to be considered fair use than use of someone’s creative work.
- The amount and substantiality of the portion used in relation to the copyright protected work as a whole. There are no set page counts or percentages that define the boundaries of fair use. Courts exercise common-sense judgment about whether what is being used is too much of — or so important to — the original overall work as to be beyond the scope of fair use.
- The effect of the use on the potential market for or value of the copyright protected work. This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing.
At one extreme, simple reproduction of a work (i.e., photocopying) is commonly licensed by copyright holders, and therefore photocopying in a business environment is not likely to be considered fair use.
At the other extreme, true parody is more likely to be considered fair use because it is unlikely that the original copyright holder would create a parody of his or her own work.
While the factors above are helpful guides, they do not clearly identify uses that are or are not fair use. Fair use is not a straightforward concept, therefore the fair use analysis must be conducted on a case-by-case basis.
Understanding the scope of fair use and becoming familiar with those situations where it applies and those where it does not can help protect you and your organization from unauthorized use of copyright materials, however, many individuals do not want this responsibility. Corporate copyright policies often provide guidelines for determining whether a use may be considered fair use. Frequently, a complete risk analysis is required. Most organizations prefer to follow the motto “when in doubt, obtain permission.”
Thousands of cases, and many books and articles have attempted to analyze fair use in order to define specific examples.
Examples of Fair Use Include:
- Quotation of excerpts in a review or criticism for purposes of illustration or comment.
- Quotation of short passages in a scholarly or technical work for illustration or clarification of the author’s observations.
- Reproduction of material for classroom use where the reproduction was unexpected and spontaneous–for example, where an article in the morning’s paper is directly relevant to that day’s class topic.
- Use in a parody of short portions of the work itself.
- A summary of an address or article, which may include quotations of short passages of the copyrighted work.
The public domain refers to works (i) no longer protected by copyright (that is, where the copyright has expired), and (ii) belonging to categories of works not protected by copyright law.
In addition, in some countries (including the United States and, for certain purposes, the United Kingdom) government works are defined by law as being in the public domain (not protected by copyright) from the moment of their creation.
Thus, differences in how national copyright laws define the duration of copyright and list the categories of works protected, result in different definitions of the public domain on a country-by-country basis.
In Europe, the Europeana Connect project has developed a helpful Public Domain Calculation tool.
Public Domain in the United States
The legal concept of the public domain as it applies to copyright law should not be confused with the fact that a work may be publicly available, such as information found in books or periodicals, or on the Internet. The public domain comprises all those works that are either no longer protected by copyright or never were.
Essentially, all works first published in the United States prior to 1923 are considered to be in the public domain in the United States, as are works published between 1923 and 1963 on which copyright registrations were not renewed. Materials created since 1989, other than those created by the U.S. federal government, are presumptively protected by copyright. Therefore, the likelihood that materials of greatest interest are in the public domain is low. In addition, you must also consider other forms of legal protection, such as trademark or patent protection, before reusing third-party content.
Public domain materials generally fall into one of four categories:
- Generic information, such as facts, numbers and ideas
- Works whose copyrights have lapsed due to the passage of time or the failure of the copyright holder to renew a registration (a requirement that applies to works created before 1978)
- Works created prior to March 1989 that failed to include a proper notice of copyright
- Works created by the U.S. federal government
Also, in rare instances, works may be “dedicated” (donated) to the public domain.
The First Sale Doctrine
The physical ownership of an item, such as a book or a CD, is not the same as owning the copyright to the work embodied in that item.
Under the first sale doctrine (section 109 of the Copyright Act), ownership of a physical copy of a copyright-protected work permits lending, reselling, disposing, etc. of the item, but it does not permit reproducing the material, publicly displaying or performing it, or otherwise engaging in any of the acts reserved for the copyright holder, because the transfer of the physical copy does not include transfer of the copyright rights to the work.
Obtaining Permission to Use a Copyrighted Work
Copyright law dictates that purchasing a copy of a work, such as a book, scientific journal, magazine or a newspaper, does not give the buyer the right to make any copyright-sensitive use of that work (even though it gives the buyer the right to dispose of the purchased copy however she wants to) – meaning that, although the purchased copy may be read or otherwise enjoyed, and may be re-sold, given away or destroyed, the work embodied in the copy may not be reproduced, publicly performed or otherwise used within the scope of the copyright law.
In the case where a copyright-sensitive use needs to be made (such as a reproduction for business use), permission can usually be obtained either directly from the rightsholder or from a third party organization that has been authorized by the rightsholder to grant the permission on his or her behalf. In some countries, that permission is granted by law (a “legal license”) in exchange for a designated payment.
Collective Licensing at an International Level
In many countries, copyright collective management organizations (also known as collecting societies, collective management organizations or CMOs) license large-scale use of works on behalf of large numbers of rightsholders, collect royalties for those uses, and distribute these royalties back to rightsholders.
There are collective management organizations that specialize in different categories of works and creators. In the field of text and image-based works, these organizations are called Reproduction Rights Organisations (RROs). They typically deal with the licensing of secondary uses of books, journals, newspapers and magazines – in both their paper formats AND their online or digital formats – and in some cases also with visual content such as motion pictures, photographs and illustrations.
Copyright Clearance Center (CCC) is an RRO itself. There are RROs in almost 80 countries, ranging from sophisticated organizations with long histories to start-up organizations in developing countries. Most RROs belong to the International Federation of Reproduction Rights Organisations (IFRRO).
RROs around the world work with different licensing models either required or permitted by their local copyright law. According to IFRRO’s Quick Guide there are three basic types of RRO licensing models.
- Voluntary collective licensing
- Voluntary collective licensing with legislative support
- Legal licenses
Some RROs offer a combination of features from the three licensing models. RRO licenses can also differ in the number and types of works they include, the types of uses they allow, and their geographic scope.
Copyright and Licensing Information Sources
Learn about organizations at the forefront of intellectual property and copyright from a global perspective.
- European Commission – Copyright
- International Federation of Reproduction Rights Organisations
- WIPO – World Intellectual Property Organization
Registration and Other Requirements
The way in which copyright protection is secured is frequently misunderstood. Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a tangible form, such as the first time it is written or recorded. Neither publication, registration or other action in the Copyright Office is required to secure copyright, although registration is recommended.
The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989. Should the copyright holder elect to utilize a copyright notice, he/she may do so freely without permission from or registration with the U.S. Copyright Office. In fact, the use of a copyright notice is recommended as it reminds the public that the work is protected by copyright.
The notice for visually perceptible copies should contain all the following three elements:
- The symbol © (the letter C in a circle), or the word “Copyright,” or the abbreviation “Copr.”
- The year of first publication of the work.
- The name of the owner of copyright in the work (Example, © 2013 John Doe).
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